Delafontaine v SSA CV-10-027-JL 1/7/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jason D. Delafontaine

v. Civil N o . 1:10-cv-027-JL Opinion N o .

Michael J. Astrue, Commissioner, Social Security Administration

MEMORANDUM ORDER

This is an appeal from the denial of a claimant’s

application for Social Security Disability Benefits. See

(g). The claimant, Jason Delafontaine, contends that

the administrative law judge (“ALJ”) incorrectly found that

Delafontaine was not disabled because he retained the residual

functional capacity (“RFC”) to perform a full range of light duty

work, see

(b), and that given his age,

education and work experience, there were a significant number of

employment opportunities available to him. See

§

404.1520(a)(4)(v); p t . 4 0 4 , subpt. P, App. 2 , §202. Delafontaine

contends that the ALJ:

(1) erred in his assessment of Delafontaine’s impairments, see id. §§ 404.1520(a)(4)(ii), ( c ) ;

(2) made a residual functional capacity (“RFC”) determination that was unsupported by the evidence;

(3) improperly ignored a treating source opinion, o r , in the alternative, should have sought clarification of evidence from that treating source, see id. §§ 404.1527(d),(e); and (4) failed to give sufficient reasons for discounting another treating source opinion. See id. § 404.1527 (d)(2); SSR 96-2p,

, at *5 (July 2 , 1996).

The Commissioner moves for an order affirming the ALJ’s decision,

asserting that it was supported by substantial evidence in the

record. This court has jurisdiction under

(g).

After a review of the administrative record and a hearing on the

parties’ cross-motions, the court affirms the Commissioner’s

decision.

I. APPLICABLE LEGAL STANDARD

The court’s review under Section 405(g) is “limited to

determining whether the ALJ deployed the proper legal standards

and found facts upon the proper quantum of evidence.” Nguyen v .

Chater,

1 , 35 (1st Cir. 1999). If the ALJ’s factual

findings are supported by substantial evidence in the record,

they are conclusive, even if the Court does not agree with the

ALJ’s decision and other evidence supports a contrary conclusion.

See Tsarelka v . Sec’y of Health & Human Servs.,

(1st Cir. 1988). Substantial evidence is “such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v . Perales,

(1971)

(quotations omitted). The ALJ is responsible for determining

issues of credibility, resolving conflicting evidence, and

drawing inferences from the evidence in the record. See

2 Rodriguez v . Sec’y of Health & Human Servs.,

1 8 , 222

(1st Cir. 1981); Pires v . Astrue,

5 , 21 (D.

Mass. 2008) (“resolution of conflicts in the evidence or

questions of credibility is outside the court’s purview, and thus

where the record supports more than one outcome, the ALJ’s view

prevails”). The ALJ’s findings are not conclusive, however, if

they were “derived by ignoring evidence, misapplying the law, or

judging matters entrusted to experts.” Nguyen, 172 F.3d at 3 5 .

If the ALJ made a legal or factual error, the decision may be

reversed and remanded to consider new, material evidence, or to

apply the correct legal standard. Manso-Pizarro v . Sec’y of

Health & Human Servs.,

5 , 1 6 , 19 (1st Cir. 1996); see

(g).

II. BACKGROUND1

A. Procedural history

In April 2008, Delafontaine, then 31 years old, applied for

disability benefits and supplemental security income benefits

claiming he was disabled since August 3 0 , 2007 due to

debilitating left leg pain. His alleged disability arose from a

1 The court summarizes the relevant facts as presented in the Joint Statement of Material Facts (Document N o . 1 2 ) . See LR 9.1(d). The court will reference the administrative record (“Admin. R.”) to the extent that it recites facts outside the parties’ joint statement or directly quotes documents in the record. C f . Lalime v . Astrue, N o . 08-cv-196-PB,

, at *1 (D.N.H. Apr. 1 4 , 2009). 3 traumatic leg injury sustained in 1986. Delafontaine maintains

that over the course of 20 years, the symptoms arising from that

injury had intensified, such that he has “trouble lifting and

carrying things, [and] to walk or stand causes severe pain. Even

sitting causes discomfort.” Admin. R. 9 4 . He further alleged

that his “doctors advised me to stop working or I was going to

lose my leg.”

The Social Security Administration denied

Delafontaine’s claims in July 2008, determining that he had

“recovered fully” from his leg injury in 1986, and therefore, his

“impairment is not considered to be severe” and he was “able to

return to any of [his] past work.”

at 3 7 .

Delafontaine appealed that decision to the ALJ, who, after a

hearing, affirmed the denial of his claim.

. The

ALJ concluded that although Delafontaine’s left leg had

deteriorated such that he exhibited several severe impairments,

he retained the residual functional capacity to perform “a full

range of light work.”

at 2 7 . The ALJ concluded that

although his impairments precluded Delafontaine from returning to

his former work as an insulation installer, see

(a)(4)(iv), given his residual functional capacity, age,

and experience, he was capable of performing in a significant

number of jobs in the national economy and was not disabled.

Admin. R. 29-30; see generally

(a)(4)(v);

404.1520(a)(4)(v), p t . 4 0 4 , subpt. P, App. 2 , §202. Delafontaine

4 filed a request to review the ALJ’s decision. The Decision

Review Board, see generally id. §405.401, however, did not

complete its review in a timely fashion, see id. § 405.415,

rendering the ALJ’s decision the final decision of the

Commissioner. See id. This appeal followed.

B. Medical and work history evidence before the ALJ

Delafontaine’s medical issues originate with an horrific

accident in 1986, when, at age 9, he was struck by an eighteen-

wheeled truck after sledding down his driveway and into the road.

Admin. R. 197. Delafontaine sustained an “open left tibial

fracture” and “degloving injury” on his left leg that extended

from his thigh to his ankle.2 He also exhibited muscle and nerve

injuries. Id. at 197-98. He spent well over a month in the

hospital and endured several surgeries to repair his leg. In May

1987, after removal of a cast on his leg, Delafontaine started

using a foot brace. He had periodic follow-up exams during his

adolescent and teen years, and by age sixteen, Delafontaine was

still using a leg brace and his left leg was 1.4 cm smaller than

2 The tibia is “the shin bone; the inner and larger bone of the leg below the knee.” Dorland’s Illustrated Medical Dictionary, 1952 (31st ed. 2007). An open fracture is “one having an external wound leading to the break of the bone.” Id. at 753-54. A “degloving injury” occurs where there is a “stripping of the skin and underlying tissue from the bones.” The Merck Manual of Diagnosis and Therapy, 2498 (17th ed. 1999).

5 his right. At that time he reported that he “walks nearly as

well without his brace as with it.” Id. at 161 (quotations

omitted).

Many years later, in October 2003, Delafontaine was referred

to an orthopedic specialist, D r . Delphine Glorieux-Sullivan,

after he had complained of left knee and ankle pain. Id. at 256.

At that time, Delafontaine was employed installing insulation,3

and stated that because he was “up and down ladders all day,

. . . [his work] has exacerbated the problems with his leg.” Id.

at 257. The practitioner who referred Delafontaine noted that,

although “[h]e is not complaining of any significant pain,” id.,

he reported “pain and stiffness, especially in the morning. It

takes him about a half-hour to get moving each day.” Id. at 256.

After review of Delafontaine’s medical records and an x-ray

taken just prior to the exam, D r . Glorieux-Sullivan noted that

although Delafontaine “as a 9-year-old had a devastating

potentially limb threatening injury to his left lower leg,” he

was “left with some very mild residual symptoms, which I think

are soft tissue related.” Id. at 251. She also stated that the

x-ray demonstrated that the “left tibia . . . [is] surprisingly

normal in appearance. There was good appearance to the knee,

3 In his application for benefits, Delafontaine stated that as an insulation installer, he would lift “100 lbs. or more” and frequently lifted “50 lbs. or more.” Id. at 9 6 .

6 good joint space both at the knee and at the ankle. . . . There

is really no residual sign of the previous open fracture.” Id.

Delafontaine returned to D r . Glorieux-Sullivan in August

2006 complaining of knee pain. Delafontaine reported that

[h]e has had knee pain for years and denies any recent injury or new trauma but rather feels that his leg pain is slowly but steadily catching up to him. He is employed full time laying down insulation and this requires him getting up and down ladders, kneeling and generally being active. He finds that as the years go on he is having greater and greater difficulty doing this.

Id. at 213. Delafontaine also reported, however, that while

Tylenol did little to relieve his symptoms, “Icy Hot” patches and

“other localized forms of treatment” did offer temporary relief

and that he did not have nighttime knee pain and slept

comfortably at night. Id. D r . Glorieux-Sullivan noted that

although both knees had a full extension and range of motion,

there was some “mild discomfort with palpation” on his left knee.

She observed an “obvious loss of soft tissue” in his lower left

extremities. A “peripheral vascular exam” revealed

[t]he left leg, below the knee, is markedly cooler to the touch than the right one. There is also markedly decreased hair growth on the left leg . . . . [and] his dorsalis pedis pulse is much weaker on his left side than on the right. I can barely feel it at all. . . . [H]e does have normal capillary refill to the left foot.

Id. at 214. Delafontaine, however, walked without a limp. Id.

Dr. Glorieux-Sullivan concluded that although medical

records indicated that his knee and tibia “showed grossly normal

7 anatomy of the bone,” she felt “that he has marked vascular

compromise to the left lower extremity, obviously secondary to

his soft tissue injury.” Id. at 215. She discussed with

Delafontaine “the fact that if there is any compromise to his

vascularization, he could lose the limb and end up with an above

the knee amputation.” Id. D r . Glorieux-Sullivan also “discussed

with [Delafontaine] the fact that in his employment as a manual

laborer, he is in essence pushing his leg to the limit and he

might wish to reconsider what he is able to do for a more

sedentary job. We also discussed the possibility of a

disability.” Id.

The following month, D r . Glorieux-Sullivan met again with

Delafontaine who “[returned] for evaluation of his left knee

discomfort.” Id. at 216. After a more careful review of his

medical history and x-rays of his knee and tibia, D r . Glorieux-

Sullivan noted that

[t]he tibia appears remarkably straight and intact considering the trauma that it went through. In the knee, there is normal articular height and no evidence of [degenerative joint disease]. The only marked abnormality I can see is a relatively short fibula with the fibular head being quite distal to the knee joint.

Id. D r . Glorieux-Sullivan concluded, “[a]ll things considered,

his left knee is functioning remarkably well as is his left foot

and ankle. Perhaps he would be better inclined to try to find a

job that was less physically demanding on his left lower

8 extremity.” Id. (Emphasis added.) D r . Glorieux-Sullivan

“encouraged him to seek possible vocational [rehabilitation].” Id. at 217. 4

Well over a year later, Delafontaine filed for disability

benefits in April 2008. He was referred to D r . Gary Francke5 by

the Social Security Administration. Id. at 224. D r . Francke

examined Delafontaine in June 2008 and reviewed x-rays of his

knee and ankle.6 By this time, Delafontaine had stopped working

as an insulation installer and was a college student. Id. at

225. D r . Francke observed that although Delafontaine did “not

appear to be in any active distress or obvious pain,” he walked

with a “mild to moderate limp” on the left side. Id. at 226.

Dr. Francke concluded that although scarring remained on his left

knee and calf, Delafontaine’s “knee is stable and he does have a

4 Dr. Glorieux-Sullivan evaluated Delafontaine four months later after he sprained his ankle in December 2006. She reported that five weeks post injury, “[h]e has been able to perform essentially full duty without difficulty or discomfort.” Id. at 219. She stated that “[h]e is to continue working full duty without restriction. He may return to all of his regular activities.” Id. 5 The ALJ’s decision referenced D r . “Franke,” id. at 28-29, however, the parties agree that the correct spelling is Francke, and although the copy of the records on file are far from clear, the parties’ spelling appears to be supported by the record. Id. at 225. 6 It is unclear from the record whether D r . Francke had access to Delafontaine’s medical records, although he did review x-rays of his knee and ankle. Id. at 225.

9 full [range of motion]” of the knee. Id. at 225. D r . Francke

stated that x-rays “[w]ere taken of [Delafontaine’s] left knee

which shows normal appearing joint surfaces, no evidence of any

fracture or dislocation. . . . I do not see any arthritis. The

ankle films also appear to be within normal limits.” Id. at 225-

26. Francke concluded that “this claimant does preserve the

ability to do basic work related activities such as sitting,

standing, walking, lifting, carrying and bending.” Id. at 226.

On July 3 1 , 2008, 7 Delafontaine was seen by D r . Harry C .

Stearns, I I I , for knee pain. D r . Stearns had treated

Delafontaine in 1986 when he was brought to the hospital after

being hit by the truck. Admin. R. 240. Delafontaine reported to

Dr. Stearns that “his knee bothers him to the extent that it

interferes with his concentration in school and at home when he

is doing his homework. It is pretty much constantly painful . .

. .” Id. D r . Stearns’ exam revealed that Delafontaine’s left

leg showed “a deformity from his degloving injury” and continued

weakness and reduced sensation. D r . Stearns noted that the left

7 Delafontaine’s consult with D r . Stearns took place after his initial denial of benefits on July 9, 2008. C f . O’Dell v . Astrue, N o . 05-cv-40-PB,

(Sept. 8 , 2010 (citing cases characterizing opinions rendered by physicians retained after the filing for benefits “advocacy opinions”).

10 knee was “stable” and found only “vague tenderness,”8 and “some

crepitation of the patellofemoral joint on motion.”9 Admin. R.

240.

Although D r . Stearns had noted that the x-rays on file did

not show arthritis, his impression was that Delafontaine suffered

from “[p]osttraumatic arthritis of the left knee, status post

severe degloving injury of the left lower extremity.” Id. at

241. He noted that Delafontaine had been denied disability

benefits and concluded that I am not sure much can be done with this or to help him. I do think it is a good idea for him to finish out his curriculum in school since I think disability is getting harder and harder to get and even if he did get i t , he might lose it down the line, so having a sedentary vocation, I think, is good for him in the long run.

Id. D r . Stearns ordered updated knee x-rays, and during a follow

up appointment on August 1 4 , 2008, he noted “some patellofemoral

crepitation but no instability” and that the “x-ray of the left

knee today . . . does not really show much of an abnormality.”

Id. at 236. D r . Stearns noted that Delafontaine had “probable

8 Dr. Stearns also reviewed a knee x-ray from 2006 and found “it really was not that remarkable” and that it “did not really show much in the way of arthritis yet, of his knee.” Id.

9 “Crepitation” is defined as “a sound like that made by throwing salt into a fire . . . [or] the noise made by rubbing together the ends of a fractured bone.” Dorland’s Illustrated Medical Dictionary, 437 (31st ed. 2007). “Patellofemoral” pertains to the patella (or “knee cap”) and the femur. Id. at 1415. 11 subclinical posttraumatic arthritis of the left knee” that should

be treated with Aleve and sparing use of cortisone shots. Id.

A few weeks later, D r . Stearns completed a medical source

statement for Delafontaine. He opined that Delafontaine could

only lift or carry ten pounds occasionally, but less than ten

pounds frequently. D r . Stearns stated that Delafontaine was

capable of standing at least two hours per eight hour workday,

but that he must be allowed to periodically alternate sitting or

standing. Id. at 227-28. He stated that in his view,

Delafontaine was limited in his pushing and/or pulling using his

lower extremities, could never climb stairs, and only

occasionally balance, kneel, crouch, and stoop because of

“deformity [and] chronic pain” in his lower left extremity. Id.

at 228. He felt that Delafontaine had limitations in attention

and concentration due to “discomfort” in his lower left

extremities. Id. at 229. Finally, he opined that Delafontaine

was limited in his capacity to be exposed to vibrations and

hazards like machinery and heights. Id. at 230. 10

10 Later that month, Delafontaine returned to D r . Stearns having fractured his elbow “when he tripped while running after a ball.” Delafontaine was observed to be “in no apparent distress.” Id. at 277. After a few months of restricted activities with his arm in a sling, D r . Stearns, in November 2008, stated that after a few additional weeks of caution, Delafontaine could “return to regular activities.” Id. at 277-

12 In December, 2008, D r . Richard Kardell examined Delafontaine

after he complained of a lingering fever and sore throat. As

part of an overall physical exam, D r . Kardell notes show that

Delafontaine “denie[d] joint pain . . . . knee pain, joint

stiffness, . . . muscle pain, [and] muscle weakness.” Id. at

285. Dr Kardell observed that Delafontaine appeared to be in “no

acute distress,” and that he “[a]mbulates on own with no device

or assistance or gait disturbance noted.” Id. at 286.

Finally, in April 2009, Delafontaine was seen for “left leg

pain and occasional knee pain” at the Dartmouth-Hitchcock Medical

Center.11 Id. at 292. At the appointment, Delafontaine

“[d]escribe[d] occasional night pain and muscle spasms [in his]

leg,” and stated he was at the clinic “for questions concerning

leg pain, and at times knee pain.” Id. Although he

“[a]ppear[ed] comfortable,” the examiner noted a “[s]ignificant

antalgic gait 12 , . . . [o]bvious shortening on [the] left side,

. . . [and a ] [l]eft leg with significant atrophy, weak with

extensor/flexors to leg/ankle and foot.” Id. Delafontaine

stated that he used a cane when walking outside. Review of

11 The joint statement of facts notes that “Dr. Carr” was the examining physician, however, the office notes are signed by Richard M . Patterson, PA, and mentions that “[p]hysician coverage today is D r . Carr.” Id. at 292-93. 12 An antalgic gait is one “counteracting or avoiding pain, as a posture or gait assumed so as to lessen pain.” Dorland’s Illustrated Medical Dictionary, 98 (31st ed. 2007).

13 Delafontaine’s x-rays revealed mild degenerative joint disease in

his knee and “[a]pparent left limb shortening.” Id. The

examiner provided him with a heel lift and suggested use of a

walking stick. Id.

C. Delafontaine’s written statements and testimony

Delafontaine’s written statements and hearing testimony

describe a formerly active individual who is now severely limited

by pain caused by his 1986 injury. He stated that

[d]ay to day living and family life has greatly diminished because of my injury. As the years went o n , it has progressively got [sic] worse. I can’t do any physical labor and going to school required me to sit for a period of time. Doing that I realized I cannot do a stationary job either.

Id. at 114. Although he worked for many years, despite ongoing

discomfort, Delafontaine claimed he stopped working in 2007 “when

my doctor advised me to stop working or I would possibly lose my

leg.”13 Id. at 100; see also id. at 9 4 . He described marked

limitations because of his injury, claiming that “I have trouble

lifting and carrying things, to walk or stand causes severe pain.

Even sitting causes discomfort.” Id. at 9 4 ; see also id. at 112-

13 Delafontaine’s apparent recollection of the August 2006 appointment with D r . Glorieux-Sullivan varies in a material aspect. Office notes indicate not that D r . Glorieux-Sullivan instructed him to stop working entirely, but rather that he should consider a “more sedentary job.” Id. at 215.

14 113.14 He described his primary daily activity as driving to

college, attending class, then returning home to “lay on the

couch and put a hot pack on my knee.”15 During the evenings, he

reads to his children,16 he soaks his leg, does homework, and

goes to bed. Id. at 107.

In his function report filed in May 2008, Delafontaine

stated that he “[c]annot sit for long periods of time” and that

he is “limited to stationary activities that can’t be done for

long periods of time.” Id. at 108. Delafontaine described

difficulty bathing and getting dressed and stated that, “I don’t

do a lot of house or yard work because I can’t stand or sit for a

14 During an April 2008 interview with Social Security Administration personnel, Delafontaine “had a noticable [sic] limp . . . sitting for the interview was difficult, he shifted positions often.” Id. at 105-06. This observation varies from Dr. Kardell’s December 2008 observation that Delafontaine “ambulates on [his] own with no device or assistance or gait disturbance.” Id. at 286. 15 Delafontaine testified that he was a full-time college student, attending two classes, four days per-week. He stated that because of “mainly” knee pain, he needs to move out of his seat every 10-15 minutes “just to alleviate the, the pain a little bit.” Id. at 1 6 . He does not take any medication for pain, id. at 1 1 , but rather treats his pain by applying warm “rice packs” frequently during the day or soaking in a tub. Id. at 1 5 . 16 Delafontaine has two school-aged children. One of his children is autistic and cared for primarily by his wife. Id. at 1 1 , 1 8 . He states that he “[helps] tend to my children when I’m able t o ; color, flashcards, read.” Id. at 108.

15 long period of time because of the pain.”17 Id. at 110. He also

claimed that “[t]he chronic pain makes it hard to relax and find

[a] comfortable position. I wake up frequently. [I] can never

get a full nights [sic] sleep.”18 Id. at 108. He claims to

engage in few hobbies (fishing, target shooting, reading,

watching television), observing that “[t]hey are all done

[occasionally] because I can’t stand and do something for too

long and I can’t sit and do something for too long.” Id. at 111.

Delafontaine claimed that he cannot lift any significant weight,

he cannot sit, stand, or walk for any extended period of time,

cannot complete tasks without frequent breaks, and has difficulty

concentrating because of his pain.19 Id. at 112.

17 Delafontaine stated that he prepares simple meals a few times per week, folds the laundry, and helps mow the lawn. Mowing, however, “take[s] a couple of days because I have to take frequent [breaks].” Id. at 109. He does not do the family shopping on a regular basis, rather, he shops for “a specific item . . . once a month for about 10 minutes.” Id. at 110. 18 This is in conflict with D r . Kardell’s notes that indicate no sleep disturbance, id. at 286, and notes from Delafontaine’s April 2009 appointment at the Dartmouth-Hitchcock Medical Center indicating a report of only “occasional night pain and muscle spasms to leg.” Id. at 292. 19 He also claimed that pain impacts his ability to squat, bend, reach, kneel, climb stairs, handle stress, and interact with others. Id. at 112-113.

16 D. The ALJ’s decision

The ALJ conducted a hearing on August 5 , 2009, at which only

Delafontaine testified. A week later, the ALJ issued an order

denying Delafontaine’s request for benefits. He found that

Delafontaine had “severe impairments,” see

(c), resulting from a “status post lower third tibial

fracture of the left leg in 1986 with mild degenerative joint

disease of the left knee.” Admin. R. 2 6 .

Despite these impairments, the ALJ concluded that

Delafontaine was capable of performing a full range of light

work.20 See

(b). The ALJ compared D r .

Stearns’ notes from July, August, and September 2008 where he

found Delafontaine’s knee to be stable, that Delafontaine

exhibited only “vague tenderness,” and he reported that

Delafontaine was hurt running after a ball, with D r . Stearns’

September 2008 medical source statement that Delafontaine could

only lift 10 pounds occasionally and less than ten pounds

frequently. The ALJ concluded that “Dr. Stearns’ clinical

records provide no support for the opinion that [Delafontaine’s]

20

(b) provides: “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls.”

17 left lower extremity impairment prevents him from lifting

significantly less than he personally acknowledged being able to

lift for many years.”21 Admin. R. 2 8 . The ALJ repeated D r .

Francke’s findings that Delafontaine could sit, stand, walk,

lift, carry and bend, and concluded that therefore Delafontaine

“retains the residual functional capacity to lift at least 20

pounds occasionally and 10 pounds frequently, to stand and walk

for about 6 hours during the day consistent with light exertional

activity.”

The ALJ stated that his findings were

“consistent with [Delafontaine’s] own self-report of his

activities, which include managing all personal care, driving to

school, attending college during the day, caring for his children

and performing household tasks.”

The ALJ specifically declined to give controlling weight to

Dr. Stearns’ medical opinion, noting

in July 2008 D r . Stearns encouraged [Delafontaine] to complete college in preparation for work lighter than that he had performed in the past. While he indicated that the claimant has significant discomfort in his leg, this assertion is inconsistent with his own clinical observations . . . and [Delafontaine’s] activity level which has included attending college for three years.

(citations omitted). Instead, the ALJ afforded greater

weight to the opinion of D r . Francke “who is familiar with the

21 As noted earlier, supra note 3 , Delafontaine’s former job as an installer had him lifting 50 pounds or more frequently and occasionally 100 pounds or more.

18 Social Security Administration’s regulations and who did examine

the claimant.” Id.

At Step Four, see

(a)(4)(iv), the ALJ

acknowledged that Delafontaine is unable to perform his past

relevant work as an installer. The ALJ denied benefits at Step

Five, see

§ 404.1520(a)(4)(v), however, because he concluded

that given Delafontaine’s age, education, and work experience,

see id. App. 2 , Medical-Vocational Guideline § 202 (“the Grid”),

there were significant numbers of jobs available that require a

residual functional capacity for light work. Admin. R. 29-30;

see generally Seavy v . Barnhart,

, 5 (1st Cir. 2001)

(explaining “the Grid”).

III. ANALYSIS

A five-step process is used to evaluate an application for

social security benefits.

(a)(4). The

applicant bears the burden through the first four steps to show

that he is disabled.22 Freeman v . Barnhart,

, 608

22 Specifically, the claimant must show that: (1) he is not engaged in substantial gainful activity; (2) he has a severe impairment; (3) the impairment meets or equals a specific impairment listed in the Social Security regulations; or (4) the impairment prevents or prevented him from performing past relevant work. The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

(d)(1)(A).

19 (1st Cir. 2001). At the fifth step, the Commissioner bears the

burden of showing that a claimant has the residual functional

capacity to perform other work that may exist in the national

economy. Id.; see also

(a)(4)(v); Heggarty

v . Sullivan,

9 0 , 995 (1st Cir. 1991). The ALJ’s

conclusions at steps four and five are informed by his assessment

of a claimant’s RFC, which is a description of the kind of work

that a claimant is able to perform despite his impairments.

, 404.1545.

Delafontaine asserts that the ALJ erred in numerous

respects. He claims that the ALJ, at Step 2 , see generally

§

404.1520(a)(4)(ii), improperly ignored evidence of “marked

vascular compromise” in Delafontaine’s left leg when describing

his “severe impairments.” Further, Delafontaine asserts that the

ALJ’s finding that he is capable of light duty work is

unsupported by the evidence. Finally, Delafontaine asserts that

the ALJ improperly ignored the treating source opinions of D r .

Glorieux-Sullivan and D r . Stearns.

A. Step 2 assessment

Delafontaine first asserts that the ALJ, at Step 2 ,

“inaccurately assessed [Delafontaine’s] left leg impairments” in

that the ALJ did not specifically mention D r . Glorieux-Sullivan’s

finding of “marked vascular compromise to the left extremity” in

20 his Step 2 analysis.23 C l . Brief at 8-9. At Step 2 , an ALJ

determines the “medical severity of [a claimant’s] impairments”

and will deny any claim if an impairment, or set of impairments

is not “severe.”

(a)(4)(2). Impairments are

deemed “severe” if they “significantly limit[] [the] physical or

mental ability to do basic work activities.”

§ 404.1520(c).

In his order, the ALJ found that Delafontaine had “the

following severe impairments: status post lower third tibial

fracture of the left leg in 1986 with mild degenerative joint

disease of the left knee.” Admin. R. 2 6 . The ALJ briefly

described the medical evidence that Delafontaine “injured his

lower left extremity in December 1986 when he was 9 years old.

The injury included degloving of the calf resulting in the need

for skin grafting with resulting scar tissue that remains to

date.” Id. In describing Delafontaine’s impairments, the ALJ

referenced D r . Glorieux-Sullivan’s notes from August 2006, noting

that Delafontaine has “decreased motor strength of the lower left

extremity as well as some stiffness of the ankle.” Id. The AlJ

concluded that “this impairment has more than a minimal effect on

the claimant’s ability to perform basic work functions such that

it is a ‘severe’ impairment . . . .” Id.

23 “Vascular” is defined as “pertaining to vessels, particularly blood vessels.” Dorland’s Illustrated Medical Dictionary, 2054 (31st ed. 2007) 21 Delafontaine contends that the ALJ’s severity conclusion

focused solely on “residual scar tissue, decreased motor strength

and ankle stiffness,” and by thus “failing to articulate the

vascular dysfunction as an impairment, the ALJ undermined the

accuracy of his subsequent RFC determination, and ultimately his

Step 5 finding that [Delafontaine] was not disabled.” C l . Brief

at 8-9. The Commissioner avers that there was no error because

the “vascular compromise” is not a distinct injury from the “left

leg injury” that ALJ accounted for in his decision. Def.’s Brief

at 4 . The court agrees.

It appears that Delafontaine’s argument is essentially that

because the ALJ’s Step 2 analysis was insufficiently specific or

somehow incomplete, it compromises the ALJ’s ultimate conclusions

at Step 4 and Step 5.24 It is simply untrue that failure to

24 The court notes that in his argument, Delafontaine does not quote any case law supporting his claim of error. C f . LaBonte v . Astrue, N o . 09-358-P-S,

, at *3 (D. M e . May 1 8 , 2010) (in a case briefed by Delafontaine’s counsel, court cited established district case law that failure to find a particular impairment severe at Step 2 is not error unless it would necessarily have changed the outcome of the case). Nor does he develop with great specificity his understanding of the meaning of “vascular compromise” as compared to Delafontaine’s overall impairment. For purposes of this analysis, the court must assume that Delafontaine is referring to D r . Glorieux-Sullivan’s notes from August 2006 where she observed that Delafontaine had “marked vascular compromise to the left lower extremity, obviously secondary to his soft tissue injury,” and that further compromise caused by his job as an installer risked potential amputation. Admin. R. 215.

22 specifically list “vascular compromise” at Step 2 undermined the

later RFC assessment because the ALJ considered D r . Glorieux-

Sullivan’s reference to vascular compromise. Admin. R. 2 8 . See

generally, SSR 96-8p,

(July 2 , 1996);

(a)(2), 416.920(e) (all impairments, both severe and non-

severe are considered in assessing a claimant’s R F C ) . The record

shows that the ALJ, in discussing his conclusions regarding

Delafontaine’s RFC, specifically addressed Delafontaine’s concern

that engaging in any work at all might risk amputation. Admin R.

28. The ALJ referenced D r . Glorieux-Sullivan’s August 2006 notes

indicating that she told Delafontaine that he “might wish to

reconsider” working as an insulation installer.

It can be

inferred from the record, therefore, that D r . Glorieux-Sullivan’s

concern about potential vascular compromise should Delafontaine

continue working as an installer was taken into account. This is

apparent from the specific mention of D r . Glorieux-Sullivan’s

concern and the ALJ’s determination, at Step 4 , that Delafontaine

could not return to his prior work. C f . Lalime,

,

at *8 (no error in not listing obesity as an impairment when it

was specifically considered in the RFC assessment). The court is

at a loss to understand how the RFC assessment at Steps 4 and 5

Although the court dismisses Delafontaine’s claim of error on the merits, it reminds counsel that courts need not address claims made without “developed argumentation.” Wall v . Astrue,

(10th Cir. 2009) (quotations omitted).

23 was compromised at Step 2 since the record shows that the ALJ did

consider the alleged vascular compromise in fashioning an RFC.25

See Portorreal v . Astrue, N o . 07-296ML,

, at *3-*4

(D.R.I. 2008); c f . Lalime,

, at * 8 ; Vining v .

Astrue, N o . 09-269-P-H,

(D. M e . July 1 ,

2010) (because ALJ adopted an RFC assessment accounting for

condition, there was no error in failure to find that condition

severe at Step 2 ) .

B. Residual Functional Capacity

Delafontaine next asserts that the ALJ’s RFC determination

was unsupported by the evidence. He first contends that the

record contains no medical source statement or opinion evidence

to support the finding that Delafontaine was capable of engaging

25 The Commissioner correctly asserts that the ALJ’s listing of “status post lower third tibial fracture of the left leg in 1986" at Step 2 , see Admin. R. 2 6 , can be reasonably read to include the alleged “vascular compromise” as that alleged vascular compromise is long term result of the 1986 left leg fracture. Further, in a letter submitted to the ALJ in anticipation of the hearing, counsel for Delafontaine Delafontain summarized the applicable evidence at each step, categorizing that Delafontaine’s severe impairments at Step 2 as “[c]hronic left leg pain, s/p fracture.” Admin. R. 146 (emphasis in original). There is no clear allegation that vascular compromise is a specific impairment to be considered separately from the left leg injury. Rather, it is mentioned briefly in a summary of D r . Glorieux-Sullivan’s office notes as part of a longer recitation of Delafontaine’s medical history beginning in 1986. Id. at 147. It is therefore not surprising that the ALJ followed Delafontaine’s lead and did not specifically list “vascular compromise” as a Step 2 severe impairment.

24 in light work. He also faults the ALJ for relying too heavily on

Delafontaine’s daily activities as support for his RFC

assessment.

1. Medical evidence

Delafontaine first asserts that “the record contains no

medical source statement or opinion to support” the ALJ’s RFC

assessment . . . [and] [i]ndeed, it is unclear how the ALJ

determined his RFC.” C l . Brief at 1 0 .

After an ALJ has determined that the claimant suffers from a

severe impairment, his or her ability to work is assessed in two

ways: the “medical source statement” and the RFC assessment.

Even though the adjudicator’s RFC assessment may adopt the opinions in a medical source statement, they are not the same thing: A medical source statement is evidence that is submitted to SSA by an individual’s medical source reflecting the source’s opinion based on his or her own knowledge, while an RFC assessment is the adjudicator’s ultimate finding based on a consideration of this opinion and all the other evidence in the case record about what an individual can do despite his or her impairment(s).

SSR 96-5p,

, at *4 (July 2 , 1996) (emphasis added).

Although determination of a claimant’s RFC is an

administrative decision that is the responsibility of the

Commissioner, see

(e), SSR 96-5p,

, at * 2 , an ALJ, as a lay person, cannot interpret a

claimant’s medical records to determine his RFC. Manso-Pizarro,

7 . An ALJ must rely to some degree on RFC

25 evaluations from a physician or another expert.

.

This does not mean, however, “that there must always be some

super-evaluator, a single physician who gives the factfinder an

overview of the entire case.” Evangelista v . Sec’y of Health &

Human Servs.,

(1st Cir. 1987). That premise

“is unsupported by the statutory scheme, . . . case law, or by

common sense, for that matter.”

Rather, “an ALJ is entitled

to piece together the relevant medical facts from the findings of

multiple physicians.” Mulkerron v . Astrue, N o . 09-10998-RGS,

, at *9 (D. Mass. July 1 5 , 2010) (quotations

omitted). Put another way, although an ALJ cannot ab initio

interpret medical records to determine a claimant’s RFC, he can

“render[] common-sense judgments about functional capacity based

on medical findings.” Gordils v . Sec’y of Health & Human Servs.,

2 7 , 329 (1st Cir. 1990); Graham v . Barnhart, N o . 02-CV-

243-PB,

, at *7 (D.N.H. May 9, 2006). Thus,

observations from medical sources which do not explicitly address

functional limitations can still inform an ALJ’s RFC

determination, Gordils,

; Graham,

,

at * 7 ; see SSR 96-5p,

, at *5 (judgment regarding

extent to which claimant is able to perform exertional ranges of

work goes beyond medical judgment regarding what an individual

can d o ) , “as long as the [ALJ] does not overstep the bounds of a

lay person’s competence and render a medical judgment.” Gordils,

26

; c f . Brunel v . Barnhart, N o . Civ. 00-402-B,

, at *9 (D.N.H. Jan. 7 , 2002) (ALJ impermissibly

interpreted medical data).

Here, the ALJ found Delafontaine capable of engaging in a

full range of light work. Admin. R. 2 7 ; see generally,

(b). He concluded that “the claimant retains the

residual functional capacity to lift at least 20 pounds

occasionally and 10 pounds frequently, to stand and walk for

about 6 hours during the day and sit for about 6 hours per day

consistent with light exertional activity.” Admin. R. 2 8 . His

weight-based finding was grounded in the notion that although

Delafontaine’s impairment precluded him from lifting the 50 to

100 pounds he frequently lifted as an installer, the medical

evidence on record did not support almost full disability. The

ALJ noted that D r . Stearns concluded in September 2008 that

Delafontaine could lift only 10 pounds occasionally. But he did

not adopt D r . Stearns’ assessment because “Dr. Stearns’ clinical

records provide no support for the opinion that the claimant’s

left lower extremity impairment prevents him from lifting

significantly less than he personally acknowledged being able to

lift for many years.”

The ALJ based his conclusion that

Delafontaine was capable of a full range of light work on D r .

Francke’s note in June 2008 that Delafontaine had “the ability to

do basic work related activities such as sitting, standing,

27 walking, lifting, carrying, and bending.” Id. at 226 (emphasis

added).

The ALJ’s RFC assessment was properly based on evidence in

the record. Light exertion is described as work where the amount

lifted “is very little,”

(b), and generally,

there is a good deal of sitting and standing. Although

Delafontaine described his activities post-filing in very

limiting terms, the ALJ noted and the record supports that for

many years Delafontaine’s work was very active and strenuous.

Delafontaine stated that at his job as an installer he

occasionally lifted over 100 pounds, and frequently lifted 50

pounds, which equates with a “very heavy” exertional level.

§ 404.1567(e). D r . Glorieux-Sullivan warned Delafontaine that he

would damage his leg and suggested that he pursue a “more

sedentary job.” Admin. R. 215. Later, after more carefully

reviewing his medical history and updated x-rays, D r . Glorieux-

Sullivan found that “his left knee is functioning remarkably well

as is his left foot and ankle,” and that “perhaps” he should

“find a job that was less physically demanding on his lower left

extremity.” Id. at 216. D r . Francke and D r . Kardell found him

to be in no obvious distress, while both D r . Glorieux-Sullivan

and D r . Stearns observed that Delafontaine presented with “mild

28 discomfort” and “vague tenderness.”26 D r . Francke stated that

after examining Delafontaine, he was capable of “completing basic

work activities.” Delafontaine’s written submissions and

testimony showed that his pain management was limited to over-the

-counter pain medications and the application of “rice packs.”

Objective medical tests reveal lingering evidence of his 1986

traumatic leg injury, but his knee, tibia, and ankle were seen to

function “remarkably” well. The record showed that functionally

h e , inter alia, attended college for three years and assisted in

household tasks and childcare.27 In determining RFC, an ALJ must

consider “all of the relevant evidence,” SSR 96-8p,

, at *5 (emphasis added) (listing categories of evidence),

both “medical and other evidence.”

(a)(3).

Taken in total, the evidence amounts to more than a “mere

26 Delafontaine’s argument that the ALJ should have given more weight to D r . Stearns’ opinion will be discussed supra Part III (C)(2). At this juncture, the court must evaluate whether the ALJ’s RFC assessment finds support in the record. 27 Delafontaine’s contribution appears limited, but he stated that while his wife did most of the childcare, he assists as much as he can. Although he testified to an inability to walk very far, he stated that “when my kids are outside, I go out with them.” Admin. R. 1 2 . D r . Stearns’ notes, however, indicate that Delafontaine injured his elbow in 2008 while running after a ball in the street, indicating more involvement and mobility. Moreover, the record is replete with contradictions regarding Delafontaine’s level of discomfort and even visible disruptions in his gait. Where there are conflicts in the evidence, it is the province of the ALJ, not the court, to resolve them. Rodriguez, 647 F.2d at 222.

29 scintilla,” see SSR 96-2p, WL 374188, at * 3 , reasonably

supporting the conclusion that although Delafontaine is incapable

of very heavy work, he can perform work at a reduced, namely a

light, exertional level. See generally C.F.R. § 404.1567(b).28

“Although [Dr. Glorieux-Sullivan and D r . Francke] did not

explicitly address [Delafontaine’s] functional limitations, . . .

it was reasonable for [the ALJ] to make a common-sense

determination as to [Delafontaine’s] RFC based on these medical

records.” Graham,

, at * 7 . The ALJ, therefore,

did not err in his finding that Delafontaine is capable of light capacity work.29

28 The court notes that perhaps the record better supports a finding that Delafontaine retained an RFC for sedentary work. However, the court is not charged with making or improving an RFC determination, rather, it determines if the ALJ’s view is supportable. See, e.g., Pires,

1 .

Delafontaine also finds error in the ALJ’s reliance on D r . Francke’s note because it did not specify how many hours per day Delafontaine is able to perform “basic work activities.” C l . Brief at 1 0 . In making his assertion, Delafontaine relies on a passage in a social security policy ruling. See SSR 96-8p,

, at * 3 , *4 (July 2 , 1996). Delafontaine misapplies this provision to medical source statements, however, instead of RFC assessments to which the provision applies. See generally, SSR 96-5p,

, at * 4 . The court will not, therefore, address the argument as it is not properly developed. See Wall,

. 29 Delafontaine suggests that the First Circuit Court of Appeal’s decision in Rosado v . Sec’y of Health & Human Servs.,

(1st Cir. 1986) requires reversal. In that case, the court concluded that the ALJ erred in fashioning a RFC different from an assessment by a physician hired by the claimant’s attorney. The court found error because the “[o]ther

30 2. Daily activities

Next, Delafontaine faults the ALJ for what he perceives as

an over-reliance on Delafontaine’s stated daily activities to

support the RFC assessment.30 The ALJ addressed findings by D r .

medical findings in the record merely diagnose claimant’s exertional impairments and do not relate these diagnoses to specific residual functional capabilities. . . . These bare medical findings are unintelligible to a lay person in terms of residual functional capacity. The ALJ, therefore, is not qualified to make that connection himself.”

. Delafontaine’s argument ignores case law recognizing that an RFC assessment is the purview of the ALJ, who is not “powerless to piece together the relevant medical facts from the findings and opinions of multiple physicians.” Evangelista, 826 F.3d at 144. Where “common-sense judgments about functional capacity” can be made, see e.g. Gordils,

, an ALJ is not restricted into adopting wholesale the functional opinions of one physician whose conclusions lack support in the record, especially one hired by a claimant. C f . O’Dell, 3516453 WL at * 7 . So long as an ALJ does not convert raw medical evidence into an RFC assessment, he has not overstepped his bounds by substituting his own judgment for that of a medical professional.

In this case, the ALJ made a common-sense assessment of Delafontaine’s RFC based, in part, on D r . Glorieux-Sullivan’s medical reports portraying Delafontaine’s restrictions in functional terms. C f . Rosado,

(ALJ erred where “bare medical findings are unintelligible to a lay person in terms of residual functional capacity”). Further, he properly discounted the functional assessment of D r . Stearns because it stood in stark contrast to D r . Stearns’ own medical conclusions. Thus, the ALJ did not over-step the bounds of his expertise and “substitut[e] his own judgment for uncontroverted medical opinion.”

; c f . Staples v . Astrue, N o . 09-440-P-S,

, at *4 (D. M e . June 2 9 , 2010) (ALJ “overstepped the bounds of her expertise as a layperson [by] translating nuanced raw medical evidence” into an R F C ) . 30 Delafontaine premises his argument on case law “where there was no specific reason stated for finding claimant not credible – no reference to the [claimant’s] demeanor, . . . nor to any other observations indicating a basis for discrediting [his] testimony,

31 Glorieux Sullivan, D r . Stearns, and D r . Francke before concluding

that “[t]he preponderance of the evidence supports the conclusion

that [Delafontaine] retains the residual functional capacity

. . . consistent with light exertional activity.” Admin. R. at

28. The ALJ then noted that this RFC assessment “is consistent

with the claimant’s own self-report of his activities which

include managing all personal care, driving to school, attending

college during the day, caring for his children and performing

household tasks.”

It is true that standing alone, the ability to perform basic

household tasks does not equate with an ability to perform

substantial gainful activity.31 See

(c); see

generally Blake,

, at * 8 . In this case, however,

the ALJ did not base his RFC assessment solely on Delafontaine’s

such as contrary medical evidence, . . . a recitation of the claimant’s daily activities did not provide substantial evidence” supporting an RFC assessment. C l . Brief at 11 (quotations omitted and emphasis added). But this premise is faulty because the ALJ specifically discounted Delafontaine’s claims about needing to stop working entirely because of possible amputation concerns based on medical documents in the record. Further, his RFC assessment specifically referenced Delafontaine’s own testimony and primary care provider notes. Admin. R. 2 8 . 31 “Substantial gainful activity” means an ability to “perform substantial services with reasonable regularity either in competitive or self-employment.” Blake v . Apfel, N o . 99-126-B,

, at *8 (D.N.H. Jan. 2 8 , 2000) (quotations omitted). “[A] claimant’s ability to engage in limited daily activities, including light housework, is not necessarily inconsistent with the inability to perform substantial gainful activity.”

(quotations omitted).

32 daily activities, but regarded his regular college attendance,

personal care management, participation in family and household

duties, doctors’ notes indicating that Delafontaine injured his

elbow “running after a ball in the street,” and ability to drive

(albeit for a short distance) in conjunction with medical

evidence suggesting an inability to perform past heavy manual

labor, but an ability to perform light work.32 These daily

activities were not “sporadic and transitory” in nature, see C l .

Brief at 1 1 , but indicate an ability to be gainfully employed,

albeit at a less strenuous level than his prior employment where

Delafontaine was required to lift very heavy objects, climb

ladders, and bend and crawl.33 C f . S t . Pierre v . Shalala, N o .

32 Indeed, the fact that both D r . Glorieux-Sullivan and D r . Stearns urged Delafontaine to attend college and that Delafontaine had successfully completed three years of college implies that these physicians believed at some level that it was not beyond his personal capabilities. The ALJ recognized this, noting that “in July 2008 D r . Stearns encouraged the claimant to complete college in preparation for work lighter [than] that he had performed in the past. While he indicated that the claimant has significant discomfort in the leg, this assertion is inconsistent with his own clinical observations . . . and . . . the claimant’s activity level which has included attending college for three years.” Admin. R. 2 9 . 33 This is not the case where Delafontaine is being penalized for working to improve his life by pursuing a college education. See Nelson v . Bowen,

5 , 48 (2d Cir. 1989) (“When a disabled person gamely chooses to endure pain in order to pursue important goals, it would be a shame to hold this endurance against him in determining benefits unless his conduct truly showed that he is capable of working.”). Here, his three year attendance at college is viewed in light of medical records indicating something less than full disability, namely, a lack of

33 CV-94-232-JD,

, at *4 (D.N.H. May 2 5 , 1995) (daily

activity evidence used to assist in understanding of relationship

between impairment, pain, and ability to work). As such, the ALJ

did not improperly consider Delafontaine’s daily activities in

his decision. See Marczyk v . Astrue, N o . 08-330A,

, at *13 (D.R.I. Aug. 7 , 2009) (no error where adjudicator

noted that daily activities supported conclusion that treating

source opinion was not reliable).

C. Treating source opinions

Finally, Delafontaine faults the ALJ for improperly

considering the treating source opinions of D r . Glorieux-Sullivan

and D r . Stearns.

1. Dr. Glorieux-Sullivan

Delafontaine first contends that the ALJ improperly ignored

Dr. Glorieux-Sullivan’s “opinion that [he] should only perform

sedentary work, failing to assign it any weight or providing any

‘good reasons’ for rejecting it.” C l . Brief at 12 (emphasis

added). Delafontaine simply misstates D r . Glorieux-Sullivan’s

opinion. It is untrue that D r . Glorieux-Sullivan opined that he

should perform only sedentary work. Rather, in August 2006, one

abnormality in his knee, findings of only “vague tenderness,” and inconsistent observations of interrupted gait. C f . Wright v . Astrue, N o . 07-CV-2464 (JFB),

, at *16 n.5 (E.D.N.Y. Dec. 1 , 2009).

34 year before Delafontaine stopped working as an insulation

installer, D r . Glorieux-Sullivan advised Delafontaine only that

“he might wish to reconsider what he is able to do for a more

sedentary job.” Admin. R. 215. This opinion supports only the

conclusion that Delafontaine risked serious injury if he

continued as an installer, a job that required Delafontaine to

perform at least a medium exertional capacity.34 D r . Glorieux-

Sullivan’s notes do not indicate that she advised him to perform

only sedentary work, but simply that he should consider less

taxing employment.35 Further, her notes from an exam one month

later in September 2006 indicate that after a more careful review

of his medical history and objective tests, D r . Glorieux-Sullivan

opined only that “[p]erhaps he would be better inclined to try to

34 It appears from the record, however, that Delafontaine’s installation job required more than medium exertion because he h stated that he lifted 100 pounds and frequently lifted more than 50 pounds or more. Admin. R. 257; c f .

(c) (defining medium level work as requiring lifting no more than 50 pounds and frequent lifting of objects up to 25 pounds). 35 Indeed, the ALJ specifically referenced D r . Glorieux- Sullivan’s statements in discussing his conclusions regarding the credibility of the Delafontaine’s claim that he risked possible amputation of his leg unless he stopped working altogether. As the ALJ noted, D r . Glorieux-Sullivan’s notes indicate that at that time she advised only that he “reconsider” his employment choice, or find a less physically demanding job.

35 find a job that was less physically demanding on his lower left

extremity.” Admin. R. 216.36

Perhaps recognizing the factual weakness of his argument,

Delafontaine asserts in the alternative that the ALJ erred in not

contacting D r . Glorieux-Sullivan to clarify her opinion. But an

ALJ must re-contact a treating source “if the evidence does not

support a treating source’s opinion on any issue reserved to the

Commissioner and the adjudicator cannot ascertain the basis of

the opinion from the case record . . . .” SSR 96-5p,

, at * 6 . This “instruction only requires an inquiry where

there is both a lack of evidentiary basis for a treating source’s

opinion and an inability, on the part of the adjudicator, to

ascertain the basis of the opinion.” Lalime,

, at

*6 (quotations omitted). D r . Glorieux-Sullivan’s notes clearly

indicate that her concern stems from the severity of his 1986

injury, the long-term effect that Delafontaine’s employment as a

“manual laborer” has on the already compromised health of his

left leg, and her opinion that Delafontaine “might wish to

36 The court accordingly also rejects Delafontaine’s argument that the ALJ failed to assign any weight t o , or give good reasons for rejecting, D r . Glorieux-Sullivan’s opinions. Indeed, the ALJ’s decision that Delafontaine is incapable of engaging in his prior work as an installer, see

(a)(4) ( i v ) , and concluding that he has residual functional capacity for only light work, an exertional level well below that required for an installer, implicitly encompasses D r . Glorieux-Sullivan’s opinions as reflected in her notes.

36 reconsider what he is able to do for a more sedentary job.”

Admin. R. 215. Thus, the ALJ could readily ascertain both the

medical basis and content of D r . Glorieux-Sullivan’s opinion from

the record. Although there is “a duty . . . to re-contact a

medical source if the information provided is inadequate to

address the question of disability,” Conte v . McMahon,

9 , 49 (D. Mass. 2007), in this case, re-contacting D r .

Glorieux-Sullivan would have been unhelpful. Her notes indicate

that although she “discussed the possibility of a disability

[with Delafontaine]. . . . I do not deal with the disability but

would recommend that he perhaps be seen by his primary care

practitioner and discuss whether or not that would be a viable

option for him.” Admin. R. 215. Thus, the ALJ had no duty to

re-contact D r . Glorieux-Sullivan.

2. Dr. Stearns

Finally, Delafontaine briefly contends that the ALJ failed

to give “good reasons” for not giving the opinion of D r . Stearns

controlling weight.37 C l . Brief 1 5 ; see generally

(d)(2); SSR 96-2p,

(July 2 , 1996). The

ALJ noted D r . Stearns’ conclusions in his September 2008 medical

37 This contention consists of a one sentence paragraph restating regulation

(d)(2)’s requirement that “good reasons” be discussed, see generally SSR N o . 96-2p,

, at * 1 , followed by four sentences devoid of case citation, asserting error in the substance of the ALJ’s reasons.

37 source form that Delafontaine could only lift 10 pounds

occasionally, but afforded this opinion only limited weight

because it was “inconsistent with his own clinical observations

. . . and it is also inconsistent with the claimant’s activity

level.” Admin. R. 2 9 .

When considering a claimant’s RFC, an ALJ is not permitted to substitute [his] own judgment for the opinion of a treating source38 on the issue(s) of the nature and severity of an impairment when the treating source has offered a medical opinion that is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence.

SSR N o . 96-2p,

, at *1 (quotations omitted); see

generally Marshall v . Astrue, N o . 08-cv-147-JD,

,

at *3 (D.N.H. Dec. 2 2 , 2008); Lopes v . Barnhart,

(D. Mass. 2005);

(d)(2).

More weight is given to treating source opinions because

“these sources are likely to be the medical professionals most

able to provide a detailed, longitudinal picture” of the

claimant’s impairments.

(d)(2). When an ALJ

decides not to give controlling weight, he is required to “give

good reasons . . . for the weight we give your treating source’s

opinion.”

The “good reasons” requirement mandates that the

ALJ’s order “must contain specific reasons for the weight given

38 It is undisputed that D r . Stearns is a “treating source.” See generally

.

38 to the treating source’s medical opinion, supported by evidence

in the case record, and must be sufficiently specific to make

clear to any subsequent reviewers the weight the adjudicator gave

to the treating source’s medical opinion and reasons for that

weight.” SSR N o . 96-2p,

, at * 5 .

Delafontaine’s argument on this issue is very brief, but

appears to be two-fold. First, he focuses on the “good reasons”

requirement in functional terms, i.e., the requirement that an

order must articulate the ALJ’s reasoning for the weight assigned

to medical sources. See Marshall,

, at *4 (error

where treating source opinion “simply overlooked”). He then

asserts the ALJ’s substantive reasoning was insufficient. The

court disagrees.

First, the ALJ pointedly discussed his reasons for giving

reduced weight to D r . Stearns’ opinion. Admin. R. 28-29. The

ALJ found that the basis for D r . Stearns’ functional assessments

(significant leg discomfort) was inconsistent with D r . Stearns’

clinical observations of vague tenderness and a lack of

instability. The ALJ also noted that D r . Stearns’ finding of

significant knee pain was inconsistent with both the fact that

Dr. Stearns encouraged Delafontaine to continue with college, and

Delafontaine’s “activity level which included attending college

for three years.” The ALJ also found D r . Stearns’ observations

that Delafontaine was limited to lifting only 10 pounds

39 occasionally inconsistent with Delafontaine’s acknowledgment that

for many years he lifted in excess of 50 pounds.

The ALJ

certainly made clear the weight given to D r . Stearns’s opinion

and the reasons for that reduced weight. C f . Costa v . Astrue,

N o . 1:09-cv-441-JL,

, at *7 (D.N.H. Nov. 3 , 2010)

(ALJ erred because he completely ignored treating source opinion

contradicting his RFC assessment).

To the extent that Delafontaine finds error in the substance

of the ALJ’s reasoning, the court concludes there was no error.

Delafontaine asserts that the ALJ’s reasoning was unsatisfactory

because he focused “exclusively on the examination details in D r .

Stearns’ two orthopedic progress notes.” C l . Brief at 1 5 .

Delafontaine believes that because D r . Stearns attended to

Delafontaine when he arrived at the hospital in 1986, and likely

had access to D r . Glorieux-Sullivan’s notes, the ALJ improperly

“ignor[ed] the larger treatment picture of which the orthopedist

was aware” and therefore did not satisfy the “good reasons”

requirement of

(d)(2).

“Several factors determine the weight that a medical opinion

is due, including (a) the nature, length, and specialty of the

examining relationship, (b) the amount of objective medical signs

and laboratory findings supporting the opinion, and (c)

consistency of the opinion with the record as a whole,” O’Dell,

(discussing factors that guide analysis of

40 proper weight to give a medical opinion); see also

(d)(2). Because these factors are “malleable,” Lalime,

, at * 5 , an ALJ is not required to methodically

apply them so long as the ALJ’s decision makes it clear that

these factors were properly considered.

Delafontaine

appears to be arguing that because D r . Stearns was present when a

nine-year-old Delafontaine was injured, and had access to his

subsequent treatment history, somehow the inconsistencies the ALJ

found in the “details in D r . Stearns’ two orthopedic progress

notes” were outweighed by the two other “important factors

ignored by the ALJ in his assessment of weight.” C l . Brief at

15. The court fails to see how these additional factors render

the ALJ’s weighting decision improper. First, over twenty years

elapsed since D r . Stearns’ first contact with Delafontaine and

his 2008 consult. This hardly indicates a long term ongoing

treatment relationship. C f . O’Dell,

(in

considering nature, length and specialty of an examining

relationship, because doctor did not base opinion on ongoing

detailed treatment of claimant, it could be afforded less

weight). Second, although knowledge of D r . Glorieux-Sullivan’s

records indicating that Delafontaine should consider less taxing

work might support D r . Stearns’ functional conclusions, they do

41 not render D r . Stearns’ findings any more consistent39 with his

own office notes.40 Accordingly, the court concludes that the

ALJ did not err in choosing to assign limited weight to D r .

Stearns’ opinion.

39 Indeed, the Commissioner correctly points out that Stearns’ RFC assessment that Delafontaine could lift or carry ten pounds frequently, stand less than two hours per workday, and must be allowed to periodically alternate standing or sitting, along with many other limitations, see Admin. R. 227-30, “suggests a less than sedentary capacity,” D’s Brief at 9, which is at odds with Dr. Glorieux-Sullivan’s conclusions. Any implication by D r . Stearns that Delafontaine is capable of work at a less than sedentary capacity runs counter to D r . Stearns’ office notes that “a sedentary vocation, I think, is good for him in the long run.” Admin. R. 241. 40 Further, although Delafontaine does not make a specific argument to the contrary, substantial evidence supports the ALJ’s decision to afford D r . Stearns’ opinion limited weight. See O’Dell,

, at *7-*9 (discussing additional factors used to assign weight). First and foremost, of course, is the inconsistency identified by the ALJ above between D r . Stearns’ medical source statement and his office notes. Further, D r . Stearns viewed the 2006 x-ray as “unremarkable” and, updated x- rays showing not “much of an abnormality.” D r . Glorieux- Sullivan’s notes that showed only “mild discomfort with palpitation,” little abnormality in the x-rays, and a finding that Delafontaine is advised to seek “less physically demanding” work than insulation installation. Moreover, Drs. Francke, Glorieux-Sullivan, and Kardell noted no obvious distress or pain. Dr. Kardell’s notes indicate that Delafontaine denied joint pain, knee pain, and muscle pain, and “[a]mbulates on his own with no device or gait disturbance.”

Finally, opinions rendered by physicians retained by claimant’s counsel may be given less weight as courts have identified such opinions as “advocacy opinions.” See, e.g., O’Dell, 3516453 WL at * 7 . Although it is unclear whether Delafontaine’s counsel retained D r . Stearns, the court notes that Delafontaine’s 2008 consultations occurred after an initial denial of benefits.

42 IV. CONCLUSION

Pursuant to sentence four of

(g),

Delafontaine’s motion to reverse and remand the Commissioner’s

decision (document n o . 9 ) is denied. The Commissioner’s motion

to affirm the decision (document n o . 11) is granted. The Clerk

of Court is directed to enter judgment in accordance with this

order and close the case.

SO ORDERED.

Joseph ___ . _______ nte ___________ United States District Judge

Dated: January 7 , 2011

cc: Francis M . Jackson, Esq. Karen B . Fitzmaurice, Esq. T . David Plourde, AUSA

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